Evidence of meeting #19 for Access to Information, Privacy and Ethics in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was commissioner.
A recording is available from Parliament.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Are you familiar with what is done in British Columbia? I was wondering if you—
Liberal
The Chair Liberal Paul Szabo
Mr. Dechert, you're actually over eight minutes now in the five-minute round. We do have another colleague who would really like to have a chance.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Okay. If you'd put me on the list again, I'd appreciate it.
Thank you.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
Thank you, Mr. Chair.
I'll let my colleague finish his question.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
I was asking if you're familiar with the British Columbia system, which I understand does have a differential fee for commercial users, and if you could comment on how that works.
Vice-Chair, National Privacy and Access Law Section, Canadian Bar Association
I don't have first-hand experience with it.
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
I don't know. Did the commissioner mention how it works?
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Yes. Well, the B.C. commissioner said they do charge a differential fee for commercial users. I'm just wondering if any of your members have made a comment one way or the other about whether that's a good idea or whether they've had any concerns about it or any problems with it.
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
I'm not familiar with the--
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
That system does exist in Canada, and it's maybe meritorious taking a look at it.
Thank you.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
Thank you, Mr. Chair.
I thank you all for being here.
My first question has to do with recommendation 3. It deals with order-making power. I note that you agree the commissioner should have enhanced powers to address administrative issues. You also note that there is a consequence to providing that power, in that you believe all parties should have a right to seek review in the Federal Court.
I am wondering if there are not other possible consequences that should be considered if we extend order-making power to the commissioner. A general comment would be that when you give or augment the power of an organization, it tends to grow or entrench itself in the bureaucracy. Would there not be an argument for greater checks and balances in exchange for giving the commissioner more power? Are there not some other steps that should be taken to make sure that additional power is in some sense compensated with other accountability or other responsibility?
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
Sir, I am not following.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
The general idea here is that if you give an office a greater budget or more power or greater authority, it tends to grow and expand over time. But generally, there's a principle of providing commensurate accountability with the increase in power. I'm talking about at a high level, the principle of to whom much is given, much is required. So if we give them more power, is there not an additional check, apart from providing a right to seek review in the Federal Court, that should be put in place?
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
There are many tribunals in Canada that have binding powers over the legislation that they manage, and the recourse to the court is the check and balance, if you will.
But I think in this case it would solve a problem that is really existing under the act right now, because for administrative matters, even though the commissioner can investigate and can render a report, there is no recourse anywhere. So it doesn't solve the delay problem or excess fees being charged, or whatever. It doesn't really allow for those determinations to be made in a final and binding way. Those determinations are a key to some of the complaints about this legislation--delays not being workable, and so forth. So if we have a statute put in place, we should have a reasonable manner in which people can get recourse. And if the commissioner had binding order-making powers, which is very standard across the country in modern access to information statutes, then there will be a mechanism for that to be addressed and perhaps eliminated. And that's the way in which, if they can make a binding order, you must obey, and then institutions will act accordingly.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
And do you think the redress through the Federal Court is a sufficient check on that order-making power? If people disagree with his decision, they can always take it to court, as opposed to arbitration or some other binding body. Do you think the Federal Court--
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
Typically, it's recourse to the court that is the result of binding order-making power on the part of a tribunal.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
And that hurdle is not too great for the average Canadian who disagrees with the commissioner's decision to perhaps not follow through with their request? It's incumbent upon them to hire a lawyer and take it to court. Is there no easier or more simple way to address this issue?
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
What one hopes is that the commissioner makes a final and binding order that is abided by and there is no need to take it further. You want to have some finality, and right now with a recommendation you just don't have it.
Conservative
Bloc
Richard Nadeau Bloc Gatineau, QC
Thank you, Mr. Chairman.
I believe it was you, Ms. Platt, who said that the Access to Information Act needed to be “revamped”. Perhaps it was one of your colleagues who said it; you'll tell me if I'm mistaken. What did you mean by that? What arguments should be advanced in order to “revamp” the act and bring it into the 21st century?
Executive Member, National Privacy and Access Law Section, Canadian Bar Association
Well, I think what we were referring to there was the idea of the five-year review, to be able to have a look at the entire act to see how it works. There are a number of options. For example, in light of technology, one could have a different manner of making requests, one could have a different manner of disclosure, one could have proactive disclosure as a feature of the legislation. There are a myriad of options, and that would be the benefit of having a comprehensive review done every five years, because technology has changed so dramatically.
It may be that some of the exemptions would disappear. Maybe we would get different ones, differently framed, but maybe there would fewer. I don't know. I think it would be up to the parliamentary committee at that time to look at it.
These are quick fixes, as the commissioner describes them and as the clerk has described them, so these are small things one can do just to ameliorate particular problems, but there is a broader issue raised by many of you here that could be addressed in a more comprehensive review.
Bloc
Richard Nadeau Bloc Gatineau, QC
So there has to be a political will, regardless of whether the government is red or blue. I understand you.
That will be all, Mr. Chairman. Thank you very much.